Ballot Question 2: N.H. voters to have say on court control

For the third time since 2002, New Hampshire voters will decide on a constitutional amendment to extend more legislative control over the administration of the state court system.

Michael McCord

For the third time since 2002, New Hampshire voters will decide on a constitutional amendment to extend more legislative control over the administration of the state court system.

Ballot Question 2 was passed in June along almost entirely partisan lines as the supermajorities in the House and Senate pushed through a bill that had identical language to a similar proposal in 2004. The latest effort unleashed an ideological fight between lawyers and politicians. Opponents believe enactment would damage the separation of powers between the legislative and judicial branches. Supporters advocate that more direct oversight by the legislative branch will restore that balance by giving lawmakers final say on judicial rule making.

Retired Supreme Court Justice Joseph Nadeau of Durham co-wrote two opinion pieces with former Republican Gov. Steve Merrill opposing Question 2. Nadeau believes the proposal is, at best, a solution in search of a problem, and at worst a power grab by the Legislature that could unduly politicize the state court system.

"I believe this was designed to satisfy disgruntled family court litigants," Nadeau said. "Make no mistake about this. This is about one branch of government imposing its will on another branch."

For years, conservative state lawmakers have criticized the Supreme Court for the series of educational funding lawsuits known as Claremont, which mandate state responsibility for education funding. Supporters of Question 2 such as Sara Shirley, of the New Hampshire Bar Association and a director at the Josiah Bartlett Center for Public Policy, believe the controversy is overblown. She said the Supreme Court created the issue "when it took it upon itself to change the balance of power" with opinions that negated the line between judicial rule making and legislative authority to make laws.

"It is time to move beyond the rhetoric and scary stories of a Legislature planning to run amok and resolve what is essentially a turf war by restoring each branch of government to its proper role," Shirley said. "The Legislature should make the laws and the Judiciary should decide cases, not vice versa."

The proposal, CACR 26, passed the House 242-96 and the Senate 19-5.

A similar measure in 2004 failed to reach the two-thirds vote required to amend the state Constitution, as only 57 percent of voters approved it. The gubernatorial candidates vying to replace outgoing Democratic Gov. John Lynch have staked out opposite positions that reflect a partisan divide.

Republican Ovide Lamontagne supports the measure as a necessary check on judicial authority.

"To the extent the judicial branch has the authority to enact rules and regulations with the force and effect of law, I believe there should be a check on that authority," he said. "It is appropriate for the legislative branch to have the authority to review rules established by the judicial branch in the same way the Legislature currently does with the regulations promulgated by the executive branch."

Democrat Maggie Hassan of Exeter opposes the bill and equates it to the Republican-dominated Legislature's quest to undermine the judicial branch.

"Maggie Hassan joins people across New Hampshire, including former Gov. Steve Merrill, in opposing Question 2 because it will undermine an independent and fair judiciary," said campaign spokesman Marc Goldberg. "The ballot measure is an attempt by Ovide Lamontagne's allies in the tea party Legislature to impose their ideology on the judicial branch, which undermines New Hampshire citizen's confidence in our system of justice."

No one is sure what might happen if the amendment passes and how it might affect the court's ability to function administratively, and whether that may affect its case-deciding capabilities. Shirley said the amendment does not threaten independence and only seeks to "mirror nearly exactly the shared authority of Congress and the U.S. Supreme Court."

Nadeau, who retired in 2005 after 37 years of service at all levels of the court system, believes the Supreme Court made a mistake earlier this year when it offered the compromise language that's in the current amendment. Nadeau said it's important for the courts to be immune from political pressure but that doesn't preclude public input. He cited the Judicial Conduct Committee, which has a majority of public members, as well as legislative and judicial members, as an example of judicial outreach.

Nadeau said the amendment should concern voters because its benign language disguises potentially devastating consequences on judicial independence, which affects all citizens. He said he has no doubt the Legislature will attempt to exert control.

"It is by enacting rules that the Supreme Court conducts administration of the courts," Nadeau and Merrill wrote. "So when legislators say they want to oversee rules, to 'control' the courts, they mean it."

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